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Superior Courts: V. C. Kindersley.-V. C. Stuart.-V. C. Wood.
laining the proper orders and of other pro- the Court, or by or before an examiner to be ceedings for the purpose of the payment of specially appointed by the Court, the examiner the dividends and interest on investments in being furnished by the plaintiff with a copy of Government securities, and of the payment the bill, and of the answer, if any, in the cause; of the principal or compensation money and such examination shall take place in the Held, that the company were liable for the presence of the parties, their counsel, solicitors, costs of a petition for payment out of Court or agents, and the witnesses so examined orally on the death of the tenant for life and shall be subject to cross-examination and reattaining 21 of the party entitled in re-examination; and such examination, crossmainder.
THIS was a petition for the payment out of Court of a sum of 691. odd, together with a small sum of cash, which stood to her separate account. It appeared that the dividends had been directed to be paid to her mother for life, who was now dead,—and the petitioner had also attained her majority.
C. Hall, in support, asked for costs against the railway company.
J. T. Wood, contrà, referred to the special Act, 6 & 7 Wm. 4, c. ciii., s. 72, which enacts, that "all the reasonable costs charges and expenses attending such purchase, &c., or which may be incurred in consequence thereof, and also the investment of the purchase or compensation money, &c., together with the costs, charges, and expenses of obtaining the proper orders and of the other proceedings for such purposes, and of the payment of the dividends and interest of the said Government or real securities, and of the payment of the principal of the said purchase or compensation money, and of the Government or real securities purchased therewith out of Court, to be paid by the said company," and citing Exparte Cooke, 3 Rail. Ca. 135; In re Strachan's Estate, 9 Hare, 185; Exparte Molyneux (V. C. B.), 2 Coll. 273.
The Vice-Chancellor said, that the costs of obtaining the orders for payment of the dividends and principal which formed part of the machinery of the payment, were included in the act, and must be paid by the company.
-USING AFFIDAVIT FILED AFTER EVI-
Leave, under the 15 & 16 Vict. c. 86, s. 31,
Malins and Jessel appeared in support of this motion on behalf of the plaintiff, for leave to use at the hearing an affidavit filed three days after the enlarged time for closing the evidence had expired, and to enlarge the time for cross examination until March 10, or further to enlarge the time for closing the evidence.
By the 15 & 16 Vict. c. 86, s. 31, it is enacted, that "all witnesses to be examined orally under the provisions of this Act shall be so examined by or before one of the examiners of
examination, and re-examination shall be conducted as nearly as may be in the mode now in use in Courts of Common Law with respect to a witness about to go abroad, and not expected to be present at the trial of a cause." Bacon and Baggallay, contrà.
The Vice-Chancellor said, the objection that the affidavit was matter of reply and not part of the plaintiff's case, was insufficient. There was a discretionary power vested in the Court, and the fact of the evidence being closed did not imply that all additional evidence was to be shut out. The motion would be granted to read the affidavit and to enlarge the time to cross-examine as asked-the cause to be set down immediately for hearing.
In re Bissell's Trust. Feb. 16, 1856. LEGATEE. RIGHT OF BANKRUPT ASSIGNEES AS AGAINST SUBSEQUENT INSOLVENCY ASSIGNEES TO LEGACY.
A legatee under a will was twice bankrupt before the death of the testatrix, and obtained her certificates. Under the second bankruptcy a dividend under 15s. was paid, and the assignees, immediately on the death of the testatrix, claimed the legacy from the executors. She subsequently became insolvent: Held, that the assignees in bankruptcy were entitled to the legacy, and that they had not waived their right by allowing the bankrupt to continue to trade.
It appeared that a legatee under the will of a testatrix had been twice bankrupt before her death, and had duly obtained her certificates, but under the second bankruptcy the dividend was under 15s. Upon her decease, the assignees thereunder claimed the legacy from the executors. The legatee afterwards became insolvent, and the assignees presented this petition for payment of the legacy, which had been paid into Court under the 10 & 11 Vict.
De Gex, in support, urged that the 6 Geo. 4, c. 16, s. 127, did not apply, as the testatrix died after the 12 & 13 Vict. c. 106, came into operation, and which did not re-enact that section, and also that the assignees under the second bankruptcy, by allowing the legatee to continue to trade, had waived any prior title: Tucker v. Hernaman, 1 Smale & G. 394; 4 De G., M'N. & G. 395; Troughton v. Gitley, Ambl. 630.
Which enacts, that "if any person who shall have been so discharged by such certifi
Superior Courts: V. C. Wood.-Queen's Bench.-Exchequer.
Cracknell for the assignees, contrà, referred to the 12 & 13 Vict. c. 106, s. 4, which enacts, that "this Act, unless where otherwise specially provided, shall commence and take effect from and after October 11, next, &c.: Provided, &c., that nothing in this Act contained shall" "lessen or affect any right, title, claim, demand, or remedy which any person now has or hereafter may have under or by virtue thereof, or lessen or affect any right, title, claim, demand, or remedy which any person now has or hereafter may have upon or against any bankrupt against whom any fiat has or shall have been issued."
The Vice-Chancellor said, that the claim of the legacy by the assignees in bankruptcy amounted to taking possession before the insolvency, and their right to recover could not be defeated on the ground of acquiescence. The most reasonable construction of the Statute was, that it did not disturb the rights under the former law, and the assignees in bankruptcy were therefore entitled to the legacy.
Court of Queen's Bench.
A motion will not be granted for leave to the
THIS was a motion for leave to the plaintiff to deliver interrogatories to the defendant under the 17 & 18 Vict. c. 125, s. 51, before declaration, on the ground alleged in the affidavits in support, that he believed he would derive material advantage from the answers thereto, and also that he had a good cause of
By s. 52 it is enacted, that "the application for such order shall be made upon an affidavit of the party proposing to interrogate, and his, attorney or agent, or, in the case of a body cor
cate as aforesaid, or who shall have compounded with his creditors, or who shall have been discharged by any Insolvent Act, shall be or become bankrupt, and have obtained or shall hereafter obtain such certificate as aforesaid, unless his estate shall produce (after all charges) sufficient to pay every creditor under the Commission 15s. in the pound, such certificate shall only protect his person from arrest and imprisonment, but his future estate and effects (except his tools of trade, &c.) shall vest in the assignees under the said Commission, who shall be entitled to seize the same in like manner as they might have seized property of which such bankrupt was possessed at the issuing the commission."
porate, of their attorney or agent, stating that the deponents or deponent believe or believes that the party proposing to interrogate, whether plaintiff or defendant, will derive material benefit in the cause from the discovery which he seeks, that there is a good cause of action or defence upon the merits, and, if the application be made on the part of the defendant, that the discovery is not sought for the purpose of delay; provided that where it shall happen, from unavoidable circumstances, that the plaintiff or defendant cannot join in such affidavit, the Court or Judge may, if they or he think fit, upon affidavit of such circumstances by which the party is prevented from so joining therein, allow and order that the interrogatories may be delivered without such affidavit." Phipson in support; Lush showed cause in the first instance.
The Court said, that the affidavit was insufficient to enable the Judge to exercise a discretion, and the rule would therefore be refused.
Court of Exchequer.
Wall v. London and South Western Railway
TAXATION OF COSTS. WHERE JURY DIS-
the taxation of the Master, disallowing the
Cook v. Hopewell. Jan. 22, 1856. PLEADING RULES, TRINITY TERM, 1853.REPLICATION ON PLEA OF PAYMENT AFTER ACTION.-COSTS.
To an action for goods sold and delivered, the defendant pleaded, except as to 221. odd, never indebted, and as to that sum payment thereof after action to the plaintiff, who accepted it in satisfaction of the debt and of all damages accrued in respect thereof. The plaintiff replied, taking issue on the plea: Held, that in order to prove the plea the defendant should show that the plaintiff accepted the sum in satisfaction of debt and of the costs, or that the costs were paid, or tendered, and that the plaintiff was not bound under the 22nd pleading rule of Trinity Term, 1853, to confess the plea in question.
A rule was therefore made absolute to set document to the production of which he is enaside the verdict for the defendant, and to titled for the purpose of discovery or otherenter it for the plaintiff, with nominal da-wise, is in the possession or power of the op
THIS was a rule nisi to set aside the verdict for the defendant and enter it for the plaintiff with nominal damages in this action, which was brought for goods sold and delivered, and to which the defendant pleaded, except as to 221. odd, never indebted, and as to that sum payment thereof after action to the plaintiff, who accepted it in satisfaction of the debt and of all The damages accrued in respect thereof. plaintiff replied, taking issue on the plea. It appeared that the debt was paid to and taken by the plaintiff without any mention of costs. On the trial before Wightman, J., the defendant obtained a verdict.
Finlason showed cause against the rule, citing the 22nd pleading rule of Trinity Term,
The Court (without calling on J. Brown in support) said, the defendant, in order to prove his plea, must show that the plaintiff agreed to accept the amount in question in satisfaction of the debt and costs, or that the costs were paid. In Henry v. Earl, 8 M. & W. 228, Lord Abinger (p. 233) said, "No doubt costs form part of the damages resulting from the detention of the debt, and if there is no answer to those costs, the plaintiff may sign judgment for so much." The 22nd rule, cited at bar, was for the purpose of enabling a defendant to plead matters of defence arising after action brought, and to enable the plaintiff to end the action by confessing the plea, and to obtain the costs up to the time of plea pleaded, but he was not bound to confess a plea like the present, which was not true.
The rule would therefore be made absolute.
posite party, it shall be lawful for the Court or Judge to order that the party against whom such application is made, or if such party is a body corporate that some officer to be named of such body corporate, shall answer on affidavit, stating what documents he or they has or have in his or their possession or power relating to the matters in dispute, or what he knows as to the custody they or any of them are in, and whether he or they objects or object (and if so, on what grounds), to the production of such as are in his or their possession or power; and upon such affidavit being made the Court or Judge may make such further order thereon as shall be just."
Blackburn in support on an affidavit of the plaintiff's attorney; C. E. Pollock showed
cause in the first instance.
The Court said, that the motion for a discovery could not be granted except on the affidavit of the party himself, and as to the rest referred the application to Chambers.
Hutchinson v. Gillespie. Feb. 7, 1856. ACTION ON ORDER OF JUDICIAL COMMITTEE
OF PRIVY COUNCIL FOR COSTS.
Held, overruling a demurrer, that an action will lie on an order of the Judicial Committee of the Privy Council for the costs of the plaintiff on an appeal being decided in his favour against a judgment of the Quebec Provisional Court, and where such judgment was final so far as he was concerned. THIS was an action to recover a sum of 1,0901. odd on an order of the Judicial Committee of the Privy Council in an appeal against a judgment of the Quebec Provincial Court, and which amount was for the costs of the
Herschfield v. Clark. Jan. 25, 1856. COMMON LAW PROCEDURE ACT, 1854.-DIS-appeal and reference to arbitration under their
order. To this declaration there was a demurrer.
A rule was refused for a discovery under the 17 & 18 Vict. c. 125, s. 50, on the plainBovill and Bullar, in support, referred to the tiff's behalf, where the affidavit was made 3 & 4 Wm. 4, c. 41, and 6 & 7 Vict. c. 38, and by his attorney, and not by himself. contended the plaintiff's remedy was by attachTHIS was a motion for a rule nisi for leave ment. He cited Carpenter v. Thornton, 3 B. & to the plaintiff to deliver certain interrogatories Ald. 52; Hookpayton v. Bussell, 10 Exch. R. to the defendant under the 17 & 18 Vict. c. 24; Fry v. Malcolm, 4 Taunt. 705; Berkeley 125, s. 51, and for the inspection of a log-v. Elderkin, 1 Ellis & B. 805; Austin v. Mills, book, the survey of the cargo and bill for repairing a ship, in this action against its owner. By section 50 of the 17 & 18 Vict. c. 125, it is enacted, that "Upon the application of either party to any cause or other civil proceeding in any of the Superior Courts, upon an affidavit by such party of his belief that any
1 Which provides, that " a plea containing a defence arising after the commencement of the action may be pleaded together with pleas of defences arising before the commencement of the action, provided that the plaintiff may confess such plea, and thereupon shall be entitled to the costs of the cause up to the time of the pleading of such first-mentioned plea."
9 Exch. R. 288; Patrick v. Shedden, 2 Ellis & B. 14; Henley v. Sloper, 8 B. & C. 16; Russell V. Smyth, 9 M. & W. 810; 1 Dowl. N. S. 929.
H. Hill and Unthank, contrà, referred to Henderson v. Henderson, 6 Q. B. 288.
The Court said, that as far as the plaintiff affirmed the judgment in his favour. But the was concerned, the decision was final, and Statutes creating the Judicial Committee had empowered it to order the parties to pay costs, and the plaintiff had therefore a statutable right of enforcing compliance, and might sue, and the power of the Judicial Committee to enforce the order did not affect his right to sue. The judgment must therefore be for the plaintiff.
The Legal Observer,
"Still attorneyed at your service."-Shakespeare,
SATURDAY, MARCH 1, 1856.
PROPOSED "LAW UNIVERSITY" their Incorporated Society, their Provincial AND "MEDICAL COUNCIL.”
Societies, and their ancient Inns of Chancery, should propose to embody themselves in a "Law University" (No. 2), and exclude all other Lawyers?
Ir appears that no steps whatever have yet been taken to carry into effect the recommendations of the Inns of Court Com- It is very evident, from the regulations missioners for establishing a "Law Univer- of the Inns of Court which have been made sity." Not only has no Bill been introduced during the last 30 years, that the Bar are into either House of Parliament, in confor- not disposed to facilitate the passing from mity with the Commissioners' Report, but we one branch of the Profession to another, or cannot learn that any one is charged with in any way to favour the association together the preparation of any measure to be sub- of the two branches of the Profession. mitted to Parliament. The Royal Com- Formerly an articled clerk or Attorney mission to inquire into the state of the Inns might also be a student for the Bar, keepof Court and Chancery, with the view of ing his Terms, and being entitled to be securing a sound legal education, was issued called in two years after he ceased to pracin compliance with an address of the House tise or belong to the profession of an Attorof Commons; and it must be admitted ney. He must now be a member for five that the Commissioners lost no time in years after taking his name off the Roll, taking evidence, and have made their Report and during the five years keep 12 Terms on the subject as speedily as could be rea- by dining in the Hall of one of the Inns of sonably expected. Court.
Our readers will no doubt agree with us, It is remarkable that, whilst this prothat the establishment of a University, posed "unilateral" scheme of legal educaconfined to the science of the Law-(re. tion and legal honours is under consideration, pudiating instruction in other sciences usu- the Medical Profession should thus early in ally taught at Universities), the members the Session have come before Parliament consisting of one branch only of the Profes- with a Bill "to alter and amend the Laws sion, and excluding the larger branch,—is regulating the Medical Profession." Before as great a mistake as any learned and sen- this Bill was introduced, we anticipated sible body of men could possibly make. that if a medical university were proposed, By this extraordinary scheme the Attor- it would include the Physicians, the Surneys-at-Law, a body of men recognised by geons, and the Apothecaries; but the prothe Legislature ever since the Statute of moters of the measure have not deemed it Merton in 1235, upwards of six centuries expedient to ask Parliament for the ambiago, are to be excluded from the projected tious designation of a "Medical University:" University," and Barristers-at-Law and their pupils alone admitted. Was there ever such a University since civilised society existed? What, we may ask, would be said by the Bar if the Attorneys, who have VOL. LI. No. 1,460.
they propose that a Council shall be established which shall be styled "The Medical Council of the United Kingdom," consisting of Members chosen by the several Universities and by the Colleges of Physi
334 Proposed "Law University" and "Medical Council.”—Joint-Stock Companies' Act.
cians and Surgeons of England, Edinburgh, of the question may be fully investigated and Ireland;-to establish a Registry of all and discussed; and, if deemed advisable, a medical men, with power to strike off the Select Committee may be appointed to connames of members who are guilty of mis-sider the details and report the result. Again we invite further suggestions on conduct, and to secure an efficient examinathis important subject. We would estion of all future practitioners. The following evidence of Sir Richard pecially beg our correspondents, who are Bethell, the Solicitor-General, given before attracted by the high-sounding name of a the Inns of Court Commissioners, shows University or a College, to consider in very distinctly the opinion of the Bar at the what way, and to what extent, the Attorpresent day as to the association of Attorneys would be benefited by an associaneys and their articled clerks with Barris- tion with the Barristers in the same Institution? What were their advantages when ters and students:
"Would you give to those persons who hap- Attorneys were allowed to be members of pened not to be members of the Inns of Court the Inns of Court? and what have they lost an opportunity of attending these Lectures? by being excluded since the year 1825? There is a principle, and probably a narrow How many Attorneys will become members principle, upon which I would exclude them; of the Senate of the University, or of the and it is this, that I think it is essential for governing body of a general College of that department of the Profession to which I Lawyers? And what will the few who are belong, viz., Barristers and students for the to effect for the good of their brethren at Bar, that they should be kept apart from other graciously admitted into the Council be able classes of the Profession; and if these lectures large? It is not enough that a very few eminent Solicitors be selected out of ten thousand, but who would have little weight in the deliberations of the Leaders of the Bar, Law Officers of the Crown, Queen's Counsel, Serjeants-at-Law, &c., &c.
were open to all, they would be open to Attorneys and to the clerks of Attorneys, and I confess I should object to that intermixture; and on that ground I have not proposed that they should be open to any but students of the Bar, and Barristers called to the Bar.
"Do you see any objection to Attorneys adopting a course of study in analogy to that proposed by the Inns of Court, for their own special use? No; they have already, to their very great credit, set us an example of so doing."
JOINT-STOCK COMPANIES' ACT.
THIS part of the Act shall apply to all companies registered under this Act, and after the 2nd Nov, 1856, to all companies registered under the Act passed in the 8 Vict. c. 110, and An Act for the Registration, Incorintituled poration, and Regulation of Joint-Stock Companies;" s. 61.
This last sentence justly recognizes the educational progress made by the Attorneys themselves through the medium and the resources of the Incorporated Law Society, where several courses of Lectures were established in 1833, and where the examination was commenced in 1836. As we ob"The Court" shall mean, as respects coinit is for the Attorneys served some time ago, of Chancery of England, and as respects comand Solicitors to consider,-1st, whether panies registered in England, the High Court they will enter upon a struggle before Par-panies registered in Ireland, the Court of liament to be associated with Barristers Chancery of Ireland; s. 62. in a Law University or College ;-or, 2nd, whether they will confine their exertions to the establishment of separate and distinct Colleges, incorporating the Barristersat-Law in one College, and the AttorneysIt would, no doubt, be highly advantageous to effect an incorporation and registry of each branch of the Profession, and that power should be given to the several Colleges to suspend or strike off their members for malpractice, with an appeal to the Judges.
at-Law in another.
We presume that whatever course be adopted, in pursuance of the recommendations of the Commissioners, the mode of proceeding will not be by Charter, but by Bill in Parliament, where all the bearings
In the event of any company being wound up by the Court or voluntarily, the existing shareholders shall be liable to contribute to the assets of the company to an amount sufficient to pay the debts of the company, with this qualification, that if the company is limited
no contribution shall be required from any shareholder exceeding the amount of calls, if any, that are unpaid on the shares held by him; s. 63.
In the event of any company other than a limited company being wound up by the Court or voluntarily, any person who has ceased to be a shareholder, either altogether or in respect
share or shares, within the period of
We consider most of the clauses for winding-up Joint-Stock Companies so important, that we submit them to our readers verbatim.